Kaka Singh vs State of Punjab and anr.

B.S. Yadav, J.

In this petition filed by Kaka Singh for issuance of a writ in the nature of habeas compass and for issuing a direction on the State Government not to force the condition of actual imprisonment of 81/2 years and to pass orders regarding his premature release case on the basis of 14 years'' sentence including remissions. The grievance of the petitioner is that though he has undergone more than 14 years of imprisonment including remissions but the State Government is not considering his premature release case on the ground that he has not undergone 81/2 years actual sentence. The petitioner was sentenced to imprisonment for life on 12th October, 1972 under section 320 of the Indian Penal Code. According to him, the period spent by him in jail including remissions is as follows :

Years Months Days

Actual sentence undergone 6 0 15

Under trial period 0 10 7

Sub Total 6 10 22

Remissions earned 6 10 9

13 9 1

The above position is said to be as on 9.6.1983. After that the petition is said to have undergone 1 months and 16 days imprisonment and has earned remissions of more than a month.

In the return, the plea of the Punjab State is that in view of the Punjab Government memo No. 133116JJ71139656 dated 10.11.1971 the prisoner is required to undergo 8/12 years of his actual sentence and in all 14 years of imprisonment inclusive of remissions, if any, and since he has not completed the prescribed period of actual sentence, he is not entitled to have his premature release case considered. According to the State, the petitioner has undergone only 6 years 15 days'' actual sentence.

The petition is liable to be dismissed on the short ground that the petitioner has not completed 14 years of imprisonment including remissions as required by paragraph 516B of the Punjab Jail Manual before his premature release case can be considered. However, as other point were also raised therefore, I will discuss those points.

This learned counsel for the petitioner has attacked the legality of the said instructions of 1971 and has further urged that in case those instructions are held legal, the period of detention undergone by the petitioner as undertrial prisoner should be counted towards the period of substantive sentence of 81/2 years which he is required to under those instructions.

While attacking the legality of the above instructions, the learned counsel for the petitioner has relied upon a decision given by this Court reported as Joginder Singh v. State of Punjab and another, 1982(1) C.L.R. 519 in which it was held that paragraph 631 of the said Manual was a statutory rule and therefore, the note appended under that rule was an integral part of the rule, and as that `note'' did not provide 81/2 years substantive imprisonment to be undergone by a life convict, therefore, the executive instructions of 1971, which run counter to the statutory rules were illegal. That `note'' runs as under :

"Note : The case of all life convicts and of all prisoners, sentenced to more than 14 years imprisonment or transportation and imprisonment for terms exceeding in the aggregate 14 years shall, when the term of imprisonment undergone, together with any remission earned under the rules amounts to 10 or 14 years, as the case may be, submitted for orders, of the Local Government in accordance with the instructions contained in the Home Department Resolution No. 159.67 (jails), dated the 6th September, 1905."

I am doubtful if the said `note'' can be said to form part of the statutory rule. The preface of the Jail Manual makes clear the distinction between the provisions which are statutory and which are nonstatutory. It has been mentioned that the portions of the Manual which are blacklined are quotations from law or rules. It further mentions that the rules have been made in exercise of powers conferred by the Prisons Act, 1894. Paragraph 631 is blacklined but the `note'' under it is not blacklined. This shows that the `note'' was introduced be executive instructions. Against that note there is marginal explanation to the effect "See to para 516B" Paragraph 516B was clearly introduced by Executive instructions. Therefore, if `note'' appended to paragraph 631 was introduced by executive instructions, it could be amended by such instructions and it will be deemed to have been so done when paragraph 615B was amended by the instructions of 1971. It is also to be noted that paragraph 631 only defines "sentences" and classes of prisoner". It has no relevance to the submissions of cases of convicts to the State Government for orders (for purpose of review of sentences). Hence considering all the facts I think that the said "note" referred to above cannot be considered as statutory rule.

I need not refer to the case to a larger Bench for decision on the above point because in a later judgment of this Court given by Punchhi, J. Mukhtiar Singh v. State of Punjab, Criminal Writ petition No. 116 of 1983 decided on May 2, 1983 it was held that the departmental instructions embodied in paragraph 516B of the Punjab Jail Manual have been amended further by the departmental instructions of 1971. These instructions have been quoted in extenso in that judgment. It was further remarked by his lordship :

"Departmental instructions are amendable undoubtedly in this manner. The mere fact that this amending instruction has not found its way in the revised 1975 Edition of the Punjab Jail Manual, is no ground to hold that it has no force at all."

I respectfully follow the later view of this Court and hold that 1971 instructions issued by the Punjab Government are valid and a life convict is required to undergo 81/2 years of substantive imprisonment i.e. actual sentence and 14 years'' imprisonment in all including remissions, if any, before his premature release case can be considered.

The next question that arises is whether the period of detention as under trial is to be counted towards 81/2 years of substantive sentence or actual imprisonment. The learned counsel for the petitioner has brought to my notice a copy of the order dated March 9, 1983 passed by their Lordships of the Supreme Court in Writ Petition (Crl.) No. 112829 of 1982 (Sukh Lal Handa & others v. State of West Bengal). In that order their Lordships of the Supreme Court remarked :

"With regard to the second contention the State Government is undoubtedly rights in its submission that the period of imprisonment undergone by an accused as an under trial prisoner is not liable to be taken into account for the purpose of reducing the term of imprisonment for life because the sentence being one of life imprisonment, it is not possible to deduct any period of under trial detention from what is important for life. But for the purpose of considering whether the case of prisoner should be consider for premature release on the completion of 14 years under Sub Rule (1) of Rule 591 of the West Bengal Jail Code and on completion of 20 years under Part IV Rule 29 of the same Code, we do not see any reason why the period of imprisonment undergone by such a person as an undertrial prisoner should not be taken into account."

There can be no dispute with the above proposition. Under paragraph 516B of the Punjab Jai Manual life convicts, above the age of 20 years at the time of conviction, are entitled to be considered for premature release on their completing 14 years of imprisonment including remissions. However, that paragraph has been further amended by the 1971 Instructions and it has been provided that out of the 14 years of imprisonment the convict should undergo 81/2 years of actual sentence. Those instructions have already been noticed. In Kartar Singh and others v. The State Haryana through Inspector, General of Prisons, Chandigarh 1982(2) C.L.R. 513 their Lordships of the Supreme Court have held that the benefit of set off contemplated by section 428 of the Code of Criminal Procedure would not be available to life convicts. Thus when the period of detention undergone by a convict during trial cannot be set off towards sentence, the said period also cannot be set off towards the period of 81/2 years of actual sentence which a life convict is required to undergo before he becomes eligible for a review of his sentence for the purposes of his premature release. The detention during trial can be counted towards total period of imprisonment but it cannot be counted towards actual sentence. It may be mentioned here that in Kartar Singh''s case (supra) the legality of the instructions issued by the Haryana Government to the Jail Superintendents to the effect that for the purpose of considering the case of premature release while calculating 81/2 years substantive sentence the benefit of under trial period was not to be given to the life convicts, who were convicted prior to a certain date, were in question. Those instructions were held perfectly legal and valid.

In Mukhtiar Singh''s case (supra) the petitioner, who was life convict, had not undergone 81/2 years'' actual sentence. Punchhi, J. held that there was no cause to issue a writ of mandamus directing the State to consider the premature release case of the petitioner and dismissed the petition which was filed for that purpose.

For the foregoing reasons I do not find any force in the present petition and dismiss the same.

Before parting with the judgment it may be mentioned here that in Criminal Writ No. 362 of 1982 (Naranjan Singh v. State of Punjab) decided on 9th November, 1982, a different view was taken. Special Leave Petition filed by the State of Punjab against that judgment is pending in the Supreme Court. That Court, has stayed the operation of that order. If the decision in Niranjan Singh''s case is upheld by the Supreme Court then the petitioner may, if so advised, move this Court to claim relief.